Citation Nr: 0302251
Decision Date: 02/05/03 Archive Date: 02/19/03
DOCKET NO. 94-22 289 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUES
1. Entitlement to service connection for a claimed left
ankle disorder.
2. Entitlement to service connection for claimed head injury
residuals.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K.M. Weida, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1943 to April
1946.
This case initially came to the Board of Veterans' Appeals
(Board) on appeal from a April 1993 rating decision by the
RO.
The Board remanded the case to the RO for additional
development in April 1996.
Then, the RO granted service connection for a bilateral
hearing loss and tinnitus in an October 1996 decision. The
RO also undertook to grant service connection for a residual
scar due to an appendectomy, effective on September 17, 1992.
However, a subsequent rating decision in February 2000 noted
that the effective date for the grant of service connection
was April 30, 1946. (This apparently was based on previously
unreviewed records that had been associated with the claims
folder.)
The Board finally notes that, in the veteran's February 2002
Statement, he stated his belief that he was entitled to
service connection for the removal of a cyst from the right
eye during service. Upon review of file, the Board finds
that this issue must be referred back to the RO for
appropriate consideration.
FINDINGS OF FACT
1. All available evidence and information necessary for an
equitable disposition of the issue decided herein has been
obtained.
2. The veteran is not shown to have manifested a left ankle
condition in service or for many years thereafter.
3. The veteran is not shown to have current residuals due to
any head injury suffered in service.
4. No competent has been presented to show that the veteran
has any current left ankle condition due to any event in
service.
CONCLUSIONS OF LAW
1. The veteran's left ankle disability is not due to disease
or injury that was incurred in or aggravated by his military
service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 &
Supp. 2002); 38 C.F.R. §§ 3.303 (2002).
2. The veteran is not shown to have disability due a head
injury that was incurred in or aggravated by service. 38
U.S.C.A. §§ 101(n), 1110, 1131, 5107, 7104 (West 1991 & Supp.
2002); 38 C.F.R. §§ 3.301, 3.303 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual background
The veteran's service medical records, to particularly
include Daily Sick Reports and Morning Reports, show that on
numerous occasions, throughout 1943 and 1944, that the
veteran was not on duty due to illness.
Furthermore, during the April 1946 separation examination,
the veteran reported no instance of a head injury or ankle
condition in service. The only disability listed was that of
a February 1946 appendectomy.
The veteran's initial application for disability compensation
received in May 1946 shows that he only claimed having
medical treatment for an appendectomy in February 1946.
A document referable to a November 1947 rating decision shows
that the RO granted service connection and assigned a
noncompensable rating for an appendectomy, effective on April
30, 1946.
(The Board notes that certain of these records were not
previously of record.)
The treatment records from the General Hospital of Saranac
Lake, dated in July 1978, show the veteran was treated for
diagnoses of sleep apneic syndrome, syncope, diabetes
mellitus, chronic obstructive lung disease and exogenous
obesity.
Likewise, the treatment records from the Medical Center
Hospital of Vermont, dated July 1990, show treatment for
obstructive sleep apnea and syncope.
The lay statements, dated in October 1993, collectively state
that the veteran received a severe head injury in July 1944
requiring hospitalization while stationed in Long Island, New
York.
The VA treatment records, dated in April and May 1995, show
treatment for hearing loss and sleep apnea.
In July 1996, the veteran underwent a VA examination. The
veteran stated that, while he was stationed in New York City
in July 1944, he and a friend had been drinking and got into
an altercation with a police officer. He further stated that
he resisted arrest and was struck in the left temple and
eventually hospitalized.
The veteran reported that he had never suffered any known
residuals from this head injury and experienced headaches on
a rare occasion with no dizziness, seizures, weakness,
sensory loss, instability of gait, memory loss or
neurological deficit.
Upon mental status examination, the veteran was alert and
fully oriented with normal mentation and speech. Cranial
nerves II-XII were completely normal with the exception that
hearing to finger rub was decreased. The remainder of the
neurological examination, including motor, coordination,
gait, station, reflexes, and sensation, was normal. The
examiner diagnosed the veteran as having a status post left
parietal head trauma with no residual.
In August 1996, the veteran underwent another VA examination.
The veteran stated that, while he was in the service, he
began experiencing sharp pains in his left ankle that would
come and go and last three or four hours. The veteran was
not advised of a possible etiology.
The veteran further reported that it gradually became less
frequent and, by the time he was discharged, he only
experienced occasional twings of pain. As to current
symptomatology, the veteran had complaints of twinges of pain
in the left ankle in the morning. He also stated that he did
not experience swelling and his pain did not occur often and
was not debilitating.
An examination of the left ankle revealed no hypertrophic
changes or edema. His range of motion was 30 degrees of
dorsiflexion, 30 degrees of extension, and satisfactory
lateral bending on both sides.
X-ray studies revealed an ill-defined radiolucency in the
metaphyseal region of the distal tibia surrounded by an ill-
defined zone of sclerosis. Furthermore, the films were
suggestive of a low-grade bone infection or possible
granulomatous lesion.
Finally, the radiology report diagnosed the veteran as having
early degenerative joint disease and a small calcaneal spur.
The VA examiner diagnosed the veteran as having sleep apnea
unrelated to a head injury and stated that the veteran
suffered from a left ankle distress in the military with
minimal current symptomatology and full range of motion.
In an April 1997 lay statement, a fellow serviceman stated
that, during a drill, the veteran fell against an outrigger
and sustained a severe head injury while stationed on Long
Island for training maneuvers.
Finally, in a February 2002 Statement, the veteran stated his
believed that the altercation with the police officer during
service, which led to the claimed head injury, was in the
"line of duty."
Analysis
Initially, the Board notes that there has been a significant
change in the law during the pendency of this appeal.
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000), which contains revised notice
provisions, and additional requirements pertaining to VA's
duty to assist. 38 U.S.C. §§ 5102, 5103, 5103A, and 5107
(West Supp. 2002).
The new law applies to all claims filed on or after the date
of the law's enactment, as well as to claims filed before the
date of the law's enactment, and not yet finally adjudicated
as of that date. See Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-
2100 (2000); VAOPGCPREC 11-2000 (2000).
In this case, the veteran has had an opportunity to submit
evidence to support his claim on appeal in light of the
above-noted change in the law and regulations.
Accordingly, the Board determines that the change in the law
does not preclude the Board from proceeding to an
adjudication of the veteran's claim without further
developing the claim, as the requirements of the new law and
regulations have essentially been satisfied.
In this regard, by virtue of the August 1993 Statement of the
Case and October 1996, May 1998, April 1999, February 200,
and September 2002 Supplemental Statements of the Case, as
well as the February 2002 letter, issued during the pendency
of the appeal, the veteran and his representative have been
advised of the law and regulations governing his claim, and
have been given notice of the information, medical evidence,
and/or lay evidence necessary to substantiate the claim.
Furthermore, this case was remanded in April 1996 to obtain
treatment records and to schedule the veteran for a VA
examination to determine the likely nature and etiology of
any diagnosed head or left ankle disability and, in September
2002, the RO specifically readjudicated the veteran's claim
for service connection for a head injury pursuant to this new
regulation.
The RO also has made reasonable efforts to obtain relevant
records adequately identified by the veteran; in fact, it
appears that all available evidence identified by the veteran
has been obtained and associated with the claims folder.
Likewise, the veteran underwent a VA examination in
conjunction with this appeal.
Moreover, there is no indication whatsoever that there is any
existing, potentially relevant evidence to obtain, the
statutory and regulatory requirement that VA notify a
claimant what evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by VA,
is not here at issue. See Quartuccio v. Principi, No. 01-997
(U.S. Vet. App. June 19, 2002) (addressing the duties imposed
by 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159).
Hence, adjudication of this appeal, without another remand to
the RO for specific consideration of the new law, poses no
risk of prejudice to the veteran. See, e.g., Bernard v.
Brown, 4 Vet. App. 384, 394 (1993). The claim is ready to be
considered on the merits.
Pursuant to regulation, service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1131
(West 1991); 38 C.F.R. § 3.303 (2002).
The regulations also provide that service connection may be
granted for any disease diagnosed after discharge when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
Continuity of symptomatology is required where a condition
noted during service is not shown to be chronic. 38 C.F.R.
§ 3.303(b). When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. Id.
The regulations also provide that an injury or disease
incurred during active duty will be deemed to have been
incurred in line of duty and not the result of the veteran's
own misconduct when the person on whose account benefits are
claimed was, at the time the injury was suffered or disease
contracted, on active duty, unless such injury or disease was
a result of the person's own willful misconduct or abuse of
alcohol or drugs. 38 U.S.C.A. § 105(a) (West 1991);
38 C.F.R. § 3.301 (2002).
"Willful misconduct" means an act involving conscious
wrongdoing or known prohibited action and will not be
determinative unless it is the proximate cause of injury,
disease, or death. 38 C.F.R. § 3.1(n) (2002). It involves
deliberate or intentional wrongdoing with knowledge of or
wanton and reckless disregard of its probable consequences.
Id.
The simple drinking of alcoholic beverage is not of itself
willful misconduct. The deliberate drinking of a known
poisonous substance or under conditions which would raise a
presumption to that effect will be considered willful
misconduct. If, in the drinking of a beverage to enjoy its
intoxicating effects, intoxication results proximately and
immediately in disability or death, the disability or death
will be considered the result of the person's willful
misconduct. 38 C.F.R. § 3.301(c) (2002).
After carefully reviewing the evidence, the Board concludes
that the veteran is not shown to have a left ankle condition
is due to any disease or injury in service. Likewise, while
the veteran has been reported as having had various inservice
head injuries, the Board finds that he is not shown to have
current disability that can be related to any event in
service.
With respect to the veteran's left ankle disorder, the Board
first notes that there is no evidence of an ankle condition
in service, including complaints or findings of such on the
veteran's separation examination report. Significantly, the
veteran did not report having any ankle condition in his
initial application for benefits filed shortly after service.
In addition, the evidence does not demonstrate a continuity
of symptoms or treatment to support the veteran's assertions.
In fact, there is no evidence that the veteran received any
treatment for a left ankle manifestations since leaving the
service. Although x-ray studies in 1996 disclosed the
presence of left ankle changes, no competent evidence has
been presented to show that any current disability is related
to disease or injury in service.
Significantly, the veteran reported during the recent VA
examination that he currently only had occasional twinges of
pain in the ankle in the morning that were not debilitating
to him.
In conclusion, since the preponderance of the evidence is
against the claim, service connection for a left ankle
disorder is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App 49 (1990).
In regard to the veteran's assertions that he suffered a head
injury in the "line of duty," the Board finds that the
medical evidence does not show that he has current disability
manifested by head injury residuals.
The veteran stated during the July 1996 VA examination that
he and a friend had been drinking and that he had resisted
arrest and suffered a blow to the left temple. Furthermore,
in a February 2002 Statement in support of his claim, the
veteran reiterated that he suffered an injury to his head
during an altercation with a police officer. An April 1997
lay statement also reported that the veteran fell during
training maneuvers, suffering a head injury.
Even assuming that the veteran's head injury was not the
result of what appears to be the veteran's own willful
misconduct in resisting arrest, the evidence does not show a
continuity of symptomatology following discharge from the
military or serve to establish that he even suffers from a
current disability to due a head injury.
One recent VA examination, however, opined that he did not
suffer from any residuals of a head injury. Another
examination opined that the veteran's sleep apnea was not
related to a head injury. Accordingly, absent evidence of
current head injury residuals, service connection must be
denied.
ORDER
Service connection for a left ankle disorder is denied.
Service connection for the residuals of a head injury is
denied.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.